Helms v. The Eastern Kansas Oil Company
| Decision Date | 08 December 1917 |
| Docket Number | 21,332 |
| Citation | 102 Kan. 164,169 P. 208 |
| Parties | S. F. HELMS, Appellee, v. THE EASTERN KANSAS OIL COMPANY, LIMITED, et al., Appellants |
| Court | Kansas Supreme Court |
Decided July, 1917.
Appeal from Allen district court; OSCAR FOUST, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. OIL REFINERY--Escaping Oil and Poisonous Substances--Material Injury to Another--Nuisance. If the owner of a refinery permits oil, refuse and poisonous substances in large quantities to escape from the refinery and flow over and upon the land of his neighbor, causing material injury to the neighbor, the use of the refinery will be deemed to be unreasonable and to constitute a nuisance.
2. SAME--Conducting Lawful Business--Liability for Damages to Adjoining Property. The fact that the business of the refinery is in itself a lawful one, and that the owner of it operates it carefully, will not exempt him from liability for casting oil, refuse and poisonous substances on the land of the plaintiff in such quantities as to cause him substantial injury.
3. SAME--Injury to Adjoining Property--Measure of Damages. The liability of the defendant in such a case is measured by the rules in relation to a nuisance instead of those governing cases of negligence.
Charles H. Apt, and Frederick G. Apt, both of Iola, for the appellants.
C. S Ritter, of Iola, for the appellee.
This action was brought by S. F. Helms against the Eastern Kansas Oil Company, Limited, to recover damages alleged to have been caused through the operation of defendant's oil refinery, which is situated near the corner of plaintiff's farm, which he has occupied as a homestead for many years. A small natural watercourse flows through the refinery grounds and across the north half of plaintiff's farm. On May 1, 1914, the plaintiff brought an action against the defendant, claiming damages because of the oil, poisonous substances and fumes which the defendant had allowed to escape from the refinery and pass over his farm, causing injury to the land, and also to some of his cows. The trial of that case resulted in a judgment in defendant's favor as to the injury to the land, but in favor of the plaintiff as to the injury to the cows. That judgment stands as a finality, and the award made against the defendant has been paid and satisfied. On October 1, 1915, the present action was begun, in which the plaintiff averred that during the last two years, and especially since May 1, 1914, the defendant had permitted large quantities of oil, refuse and poisonous substances to escape from its premises and run upon and over his land, and also that it had contaminated the air with foul and ill-smelling gases and vapors which were carried upon his farm and into his residence. There was an allegation that the defendant had enlarged its plant since May 1, 1914, and that the flow and passage of oil, fumes and poisons had been correspondingly increased, with the result that his land had been injured to the extent of $ 1,000, and that, in addition to the damage to the land, his orchard and trees had been injured and the health and comfort of the family impaired, for which he asked $ 2,000. A motion of defendant to require the plaintiff to separately state and number his causes of action was overruled, the court holding that only a single cause of action had been pleaded. The defendant answered that it was carrying on the refinery business in a lawful and proper way; that the stream that flows through the premises of both is a natural watercourse; that the use it made of the stream was lawful and proper; and that if any substances had flowed upon plaintiff's land, it was due to excessive rainfall--an act of God; and further, that the claims made by the plaintiff had either been adjudicated, or were barred by the statute of limitations. At a trial on these issues a jury returned a verdict awarding plaintiff $ 300, and also special findings that plaintiff's land was as valuable on October 1, 1915, as it had been on May 1, 1914, and that the trees, for the destruction of which plaintiff asked damages, had died from improper care and from neglect. On the motion of the defendant the court set aside the special findings and verdict and granted a new trial. The plaintiff then amended his petition, setting forth the creation and maintenance of a nuisance on plaintiff's land by permitting the escape of and the throwing of poisonous substances and vapors over it, for which he asked $ 3,000. He also alleged special injury to the live stock which decreased the quantity of milk given by his cows, amounting to $ 665, and for the destruction of crops and pasture he asked $ 300. In this petition he alleged that since May 1, 1914, the defendant had increased the equipment of its plant, which increased the injury to his land and other property. The answer which the defendant made to the first petition was refiled as the answer to this petition. The court ruled that this petition stated a single cause of action, and it instructed the jury that the former adjudication constituted a bar to a recovery of any depreciation in or damage to the land which had occurred prior to May 1, 1914, and that only such damages could be recovered as had been caused since that time through the enlargement of the defendant's refinery and increased flow of refuse matter upon the land. The jury were further instructed that the former judgment would not bar a recovery for the alleged loss of crops and pasture and injury to live stock. The second trial of this case resulted in findings that the defendant had not increased the output of its plant since May 1, 1914, and that the land had not decreased in value since that time. There was a finding by the jury that the plaintiff had sustained no loss through the wrongful acts of the defendant, except for injury to the grass on twenty-five acres of pasture land.
In its appeal defendant complains of the ruling refusing to require the plaintiff to separately...
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